Cutting Through The Noise: Australian Government Review into Drone Noise Regulation
Published: 8 October 2019
In late September 2019, the Australian Government, Department of Infrastructure, Transport, Cities and Regional Development (the Department) released an Issues Paper titled ‘Review of the Air Navigation (Aircraft Noise) Regulations – Remotely Piloted Aircraft’ (Review).
The 15-page Issues Paper is available here. For the thought-rich but time-poor, below is the super summary:
 In short, the Review will be conducted by the Department and consider the appropriate scope and breadth of future noise regulation for drones and Urban Air Mobility (UAM) Aircraft. UAM Aircraft are highly automated (including conventionally piloted and remotely piloted) passenger or cargo carrying air transport services in urban areas (think Uber Elevate).
 The Department seeks consultation and will be accepting submissions until close of business Friday, 22 November 2019. The final report is to be completed by 31 December 2019.
How and Who?
 Aviation, including aviation noise, is traditionally (and constintutionally) the domain of Commonwealth regulation i.e. Australia-wide law. The Commonwealth regulates aviation noise through the Air Navigation Act 1920 (Cth) (the Act).
 Aircraft are generally required to have a noise certificate under the Air Navigation (Aircraft Noise) Regulations 2018 (the Regulations).
 However, the Regulations were not developed to manage drones and there are currently no specific regulations for drone noise.
 Despite this apparent loophole, the Aussie Regulations do set out a procedure in section 17 of the Regulations where aircraft to which no standards apply can obtain approval to operate despite not having (and not being able to obtain) a noise certificate. For example, Wing Aviation Pty Ltd (Google relative) has obtained section 17 approvals for its Canberra and Brisbane drone delivery operations.
 In addition to aviation specific legislation, there are also Commonwealth noise laws under the environmental legislation, such as the Environmental Protection and Biodiversity Conservation Act 1999 (EPBC Act). The EPBC Act may apply to noise emitted by drones where, for example, such noise would impact on an endangered species.
 The Department says there are good arguments for the Regulations to be amended to allow drone noise to be regulated by State/Territory noise laws rather than the Commonwealth laws.
 Enter stage right the Good Ol’ Section 109 of the Aussie Constitution. This Bad Boy tells us that when a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails and the State law is invalid to the extent of the inconsistency. This trump card currently largely prevents State/Territory laws from covering noise generated by aircraft.
The Department’s angle: “It’s the vibe of it. It’s the Constitution. It’s Justice. It’s law. It’s the vibe and ah, no that’s it…”
 Despite this Constitutional hurdle, the Department remains of the view that drone noise regulation by States and Territories might be more suited to certain aspects of drone delivery operations e.g. noise around drone delivery sites. However, any such regulations would need to be carefully drafted to avoid any s109 Constitutional issues.
The Department’s proposed regulation of drone noise:
[a] Commonwealth noise regulations for drones to be concentrated on air navigation, based on drone size, weight and design; tested noise levels; operational height and location.
[b] State/Territory regulation of drone noise to cover other aspects such as around a drone’s base of operations;
[c] carve-outs for:
(i) recreational drones, all drones < 250 grams, and drones operating under standard operating conditions;
(ii) particular types of operations including emergency services, agricultural and other prescribed services operations e.g. lifesaving patrols, essential medical supply delivery;
(iii) drones that meet recognised international aircraft noise certification standards;
[d] benchmarking acceptable noise levels for flights over different land use areas, including residential areas;
The Department’s proposed regulation of UAM Aircraft:
[a] national noise regulation for UAM Aircraft using noise levels based on aircraft with similar propulsion e.g. helicopters.
[b] Commonwealth noise regulation of UAM’s to be focused on their air navigation, allowing for: operational height and location; and in built-up residential areas, the use of restrictions based on total number of flights per day, the duration of flight, how many flights per hour and time of flights (day/night).
[c] State/Territory noise regulation of UAM Aircraft using their environmental protections regulations.
[d] carve-out for UAM aircraft that meet recognised international aircraft noise certification standards;
[e] requiring Australian Noise Exposure Forecasts (ANEF) to be produced by the aircraft operator around landing and take-off sites to identify and manage potential noise impacts. Note: the ANEF system is the primary measure of aircraft noise exposure used around the vicinity of airports.
With pending drone registration, pilot accreditation and now the consideration of a noise framework, one view is that the props won’t able spin due to all the red tape.
On the other side of the coin, these regulations demonstrate that the Government is taking drones very seriously and sees them as a long-term technology solution that will play a key part in commerce and a significant contributor to the Australian economy.
Keeping the sunny-side up; rather than strangling the drone industry, perhaps the regulations are facilitating a strong and sustainable drone industry. Similar to the Standard Operating Condition: this is no fly by night.
The Drone Lawyer
8 October 2019